JUDGMENT
1. The Above appeals emanate from Sessions trial No. 167 of 2006 and the appellants, namely Rajesh, Ravindra Chauhan, Brahma Deo Chauhan and Arvind Gour have been convicted under Section 147/436/323/307/302/506/149 I.P.C. vide the judgment and order dated 21.12.2007 rendered by the Special Judge/Addl. District and Sessions Judge court No. 7 Ballia and sentenced to undergo life imprisonment.
2. The appeals have come up before us today for consideration of the prayer for bail made on behalf of the above appellants.
3. The occurrence is said to have taken place on 1.1.2006 at 6.30 p.m and the F.I.R. of the said occurrence was lodged at the police station the same day at 8.30 p.m. by one Rajni Kant Yadav naming the appellants amongst the assailants who perpetrated the crime. According to the prosecution case, deceased Chandra Deo Yadav father of the informant Rajni Kant Yadav besides having a house in his patriarchal village Hathoj had also constructed a house in village Usasa District Ballia. Brahma Deo Chauhan one of the appellants wanted to grab the said house on the pretext that the said house had been constructed on Gram Samaj land. On this count, the accused persons nurtured vengeance against them and on the day of occurrence, the appellants variously armed with Lathi, Sticks, Ballam and Brickbats came at the door of the informant and started shouting foul language and assaulted the informant Rajni Kant. In the meantime, deceased Chandra Deo Yadav, the father of the informant and younger brother of the deceased escaped into the house and bolted the door from inside. The accused persons piled up straws (Pual) against the door and ignited fire while standing outside to prevent escape. After a short while, the deceased Chandra Deo Yadav and other family members tried to escape from burning house, but the accused persons who were standing outside showered blows with their respective weapons and as a result, Chandra Deo Yadav slumped down on the ground and lost consciousness. Upon their hue and cry, the co-villagers namely, Hans Nath Yadav, Adalat Yadav, Ram Bachan Yadav etc were attracted to the scene of occurrence and on their arrival, the remaining family members who were trapped in between the blazing fire, emerged out of the house. According to prosecution case further, Chandra Deo Yadav, his two sons and his younger brother got singeing injuries. The further case is that thereafter the accused persons also set Kacha house which is in the immediate proximity of the pucca house, on fire. In the meanwhile, the police appeared at the scene and the accused persons pelted stones on the police party as well but after reinforcement was rushed in to the village to aid the police party, the accused persons fled away. After the occurrence, Chandra Deo Yadav was rushed to B.H.U. Hospital where he succumbed to his injuries.
4. In the incident, as many as 10 persons suffered injuries besides the deceased out of whom Km. Nisha received three injuries, Smt. Rajvanshi, 7 injuries, Smt. Geeta Devi one injury, Rajesh six lacerated wounds and one contusion. Hans Nath one injury, Smt. Chandra Kala 3 injuries, Adalat, 4 injuries and Rajni Kant Yadav 3 injuries. Out of the injured Ghan Shyam and Ashotosh suffered burn injuries. In so far as deceased is concerned, he is enumerated to have suffered eight injuries on his person and the injuries suffered by him are spread over both vital parts as well as other part of the body. The deceased is also indicated to have suffered burn injuries.
5. The learned Counsel for the appellants began his submission arguing that the roles attributed to all the accused persons are not dissimilar and some of the accused persons having almost similar roles have already been admitted to bail and further some of the accused with almost similar roles have been acquitted by the trial court and on this count, the learned Counsel staked claim to parity and sought bail to the appellants as well. The further contention in support of his argument is that there is not an iota of evidence on record that any of the appellants had inflicted injuries to deceased Chandra Deo Yadav, which proved fatal resulting in his death attended with further submissions that injuries suffered by other injured persons were of simple nature. Lastly, he submitted that the appellants have been suffering incarceration in jail for the last two years and the evidence against them being very fragile, they are entitled to be released on bail pending appeal in this Court. The learned Counsel also argued that one of the accused Hans Nath Singh who is assigned the role of putting wooden plank on the person of the deceased and is stated to have exerted pressure with all possible force, has already been acquitted. Per contra, learned A.G.A. contended that the acts of the accused persons reflected extreme high-handednes at its crudest form. He also contended that the accused persons disliked settling of the victim family in the village and ostensibly with the object of compelling them to abandon the house they took the law into their hands and perpetrated the crime instead of getting them evicted from the land in accordance with law. He also recounted the entire incident and stated that the deceased made a bid to burn alive entire family members and even ladies and girls were not spared. He also drew attention to the injuries suffered by the deceased and the injured family members and argued that the manner in which attack was planned and executed, the nature of injuries inflicted on the deceased and other family members and the attempt of the appellant in setting afire the houses are eloquent of the firm determination of the accused persons to eliminate the whole family. He also drew attention to the highhandedness of the accused persons citing that they did not spare the police personnel and pelted stones at them and they retreated and escaped after reinforcement was called in.
6. Out of the witnesses who were examined by the prosecution, P.W.1 Rajni Kant Yadav, P.W. 2 Rajesh Kumar Yadav and P.W. 4 Hans Nath Yadav are the injured witnesses who have given precise ocular account of the entire episode.
7. To buttress the prosecution story, learned A.G.A. drew attention of the Court to some antecedent events. Learned A.G.A. recounted that prior to the incident, proceedings under Section 107/116 Cr.P.C. were drawn in connection with the dispute between the feuding parties over the land in question over which house was constructed by the deceased approximately 30 years back. The learned A.G.A. also drew attention to the fact that it was Brahm Deo Chauhan who had inflicted injuries on the person of Rajesh and Chandra Deo Yadav deceased which he did, proceeds the submission, to terrorize and make them flee the village. He also recounted that it was Brahmh Deo Chauhan who bolted the door from outside and stood their to prevent escape of the deceased and his family members from the burning house after it was set afire and subsequently, when deceased tried to escape from burning house, it was he who delivered fatal blows and as a result, the deceased succumbed to injuries caused to him by lathi blows and also on account of burn injuries suffered by him. It also submitted that Arvind Gour and Rajesh Yadav alias Babban Yadav have been attributed the role of inflicting lathies blows on the head of the deceased and to buttress his submission he drew attention to the injuries suffered by the deceased on his head. Ravindra Chauhan is attributed the role of causing injury on the leg of the deceased. Ravindra is also said to have caused injuries to Rajni Kant and P.W. Rajesh Kumar Yadav.
8. Ex facie, it would thus transpire from the submissions of the learned A.G.A. that each of the four appellants have been attributed the specific role in the commission of the crime and in setting on fire the houses of the deceased ostensibly with the object of eliminating the entire family of the deceased. Learned A.G.A. also contended that some of the accused persons were acquitted by the trial court owing to the fact that they were not nominated in the F.I.R. as accused and therefore, the case of the acquitted accused is distinct from the case of other appellants who have been specifically named in the F.I.R. and their role specified by the witnesses. The learned A.G.A. pointed out that the appellants on whose behalf the prayer for bail has been made were not admitted to bail even during trial and therefore, he argued, claim of parity does not merit consideration at this stage after conviction has been recorded against them on cogent and convincing evidence.
9. The learned A.G.A. also repudiated the submissions that the appellants be enlarged on bail regard being had to the fact that they have been languishing in jail for the last two years followed by the contention that the brutality of extreme nature is reflected from the role played by the appellants in the commission of the offence as has also been found by the trial court inasmuch as they attempted to burn alive the entire family only on account of the fact that they had resented settling of the family of the deceased in the village.
10. In G. Narasimhulu v. Public Prosecutor, A.P. , the Apex laid down relevant criteria for grant or refusal of bail in the case of a person who has either been convicted and has appealed or one whose conviction has been set aside. In para 6 of the said decision, the Apex Court ruled that when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the court may reasonable presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment should he be enlarged. In para 7 the Apex Court laid down that the nature of the charge is the vital factor and the nature of the evidence also is pertinent.
11. The punishment to which the party may be liable if convicted or conviction is confirmed also bears upon the issue. In para 8 the Apex Court laid down that another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. In para 10, The Apex Court ruled that the “deprivation of freedom by refusal of bail is not for punitive purpose but for the bi-focal interests of justice to the individual involved and society affected.”
12. In Vijay Kumar v. Narendra and Ors. and Ramji Prasad v. Rattan Kumar Jaiswal and Anr. , the Apex Court held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 I.P.C. the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.
13. In Kishori Lal v. Rupa and Ors. the Apex Court held that the mere fact that during the trial the accused persons were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial looses significance when on completion of trial, the accused persons have been found guilty.
14. One of the grounds urged by learned Counsel for the appellant is that the appellants are entitled to bail on ground of parity and in connection with this submission the learned Counsel drew attention to the instance of accused Hans Nath Gour who had been attributed a no less role qua the appellants i.e. the role of inflicting Lathi blows and of putting wooden plank on the person of the deceased and having exerted pressure on it with all possible force, and yet he was acquitted by the court below. In response to the submission, we have examined the record and from a close scrutiny, it transpires that the case of the accused is clearly distinct and distinguishable from the case of the appellants inasmuch as the said accused was not named in the F.I.R. and his name transpired subsequently. Besides, it is settled position in law that parity is not a recognized ground in law to furnish foundation for grant of bail to a similarly situated person in the commission of the crime. The relevant decision on the point is Chander alias Chandra v. State of U.P. in which the quintessence of what has been held by the Division Bench of this Court is that a Judge is not bound to grant bail on ground of parity and if similarly placed accused is not granted bail it is not violative of Article 14 of the Constitution of India. In the above perspective, the ground set up to buttress the prayer for bail does not commend to us for acceptance.
15. We have scrutinized the finding recorded by the trial court vis-à-vis the evidence on record from whatever narrow hole we can see at the stage of considering the prayer for bail of the appellants and we are of the view that the ex facie the finding on the basis of evidence and the materials on record, do probabilise the guilt of the accused. The crime committed is heinous and was executed with extreme gruesomeness and a fair finding of guilt has been recorded by the trial court based on evidence on record which points to the guilt of the accused persons. Besides the appellants were denied bail in the course of trial and this circumstance also leans against the appellant being admitted to bail pending appeal in this Court.
16. In the facts and circumstances of the case, the prayer for bail on behalf of Rajesh alias Baban Yadva, Ravindra Chauhan Brahma Deo Chauhan and Arvind Gour being without substance is accordingly rejected.